(2) He may also, when necessary, select | assistant surgeon in the Navy was entitled other line officers junior to the flag lieutenant to serve on his personal staff as aids, but shall not assign naval cadets to such duty." They are selected for like service, and it is admitted that there would have been reason for a like express statutory provision in their favor as to compensation. The sum The sum of $200 is allowed to an aid to a major general in addition to the regular pay of his rank. It is allowed as payment for the additional service imposed. Bearing in mind the purpose of the act to give the same compensation to corresponding officers of the Army and Navy, and that it is expressly provided that officers of the Navy shall receive the same pay and allowances, except for forage, as are or may be provided by law for officers of the Army of corresponding rank, we think it does no violence to, but rather carries out, the purpose of Congress to construe this section so as to give to an aid of a rear admiral, in addition to the regular pay of his rank, pay similar to that allowed an aid to a major general. We reach the conclusion that the court of claims was right in its allowance of this item. The solution of the question as to mounted pay depends upon whether such pay is given to an officer whose duty requires him to be subject to mounted duty, or whether it is a term used to designate the pay of aids whether they are required to render mounted service or not. Section 1301 of the Army Regulations of 1905 provides: "The following officers, in addition to those whose pay is fixed by law, are entitled to pay as mounted officers: Officers of the staff corps below the rank of major, officers serving with troops of cavalry, officers of a light battery duly organized and equipped, authorized aids duly appointed, officers serving with companies of mounted infantry, and officers on duty which, in the opinion of the department commander, requires them to be mounted and so certified by the latter on their pay vouchers." to mounted pay under the Navy personnel act, because an assistant surgeon in the Army was entitled thereto. Under 1168 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 834) an assistant surgeon in the Army ranked with a lieutenant of cavalry for the first three years of service, and with a captain of cavalry after the expiration of that period. Under these provisions the assistant surgeon was held entitled to mounted pay. We are further cited to a decision of the Comptroller of the Treasury (10 Comp. Dec. 523), holding that officers of the pay corps of the Navy are entitled to mounted pay, as officers of the pay corps of the Army are given by law cavalry or mounted pay. It may well be that in these cases mounted pay was descriptive of the compensation to be paid, and an officer may therefore be entitled to it, although he renders no mounted service. But the right of mounted pay to an aid to a rear admiral, assuming that the Navy personnel act assimilates the compensation of an admiral's aid to that of an aid to a major general in the Army, depends upon whether an aid to a major general under paragraph 1301 of the Army Regulations above quoted, although he renders no mounted service, and may not be required to be mounted, is entitled to such compensation. We think §§ 1302 and 1303 of the Army Regulations may also be noticed in this connection. They are: "Sec. 1302. Department commanders will announce, in orders, the authority obtained from the Secretary of War for mounting companies of infantry, giving the date from which such mounted service commences, and termination of the same. "Sec. 1303. Muster rolls and returns of light batteries and companies of mounted infantry will show the number, date, and source of order authorizing mounted service. The pay pay accounts of officers charging mounted pay will contain the same information. A copy of the order will be attached to the first muster rolls prepared after the battery or company has been equipped or such service will appear on the first muster rolls prepared after its discontinuance." The contention of the appellee is that aids, duly appointed under this section, serving in the Army, are entitled to this compensa-mounted; a copy of the order discontinuing tion, whether required to be mounted or not. And further, that the language "pay as mounted officers" is used in the paragraph rather with a view of fixing the amount to be paid than to characterize the service required. It is doubtless true that the term "mounted pay" may be used in this sense. Richardson v. United States, 38 Ct. Cl. 182, is cited as an illustration of this use of the phrase. In that case it was held that an We think these sections, with § 1301 of the Army Regulations above quoted, read in the light of the statute (Rev. Stat. § 1270, U. S. Comp. Stat. 1901, p. 899), giving to Army officers the pay of cavalry officers of the same grade when assigned to duty which requires them to be mounted, indicate a general purpose to give to officers of the Army mounted pay when their duties are such as may require them to be actually mounted, or are such as may at any time subject them to the necessity of rendering mounted service. The particular section (1301) under which it is insisted that a naval aid is entitled to mounted pay designates officers who either are, or may be, required to be mounted in the discharge of their duties, and likewise to "officers on duty which, in the opinion of the department commander, requires them to be mounted, and so certified by the latter on their pay vouchers." Constitutional law ex post facto laws changes in execution of death sentence. The substitution in cases of convictions of murder in the first degree, made by N. D. act March 9, 1903, of close confinement in the penitentiary for not less than six nor more than nine months after judgment and before execution of the death penalty, in lieu of confinement in the county jail for not less than three nor more than six months, and the change of the place of execution from the county jail to the penitentiary, do not render the statute ex post facto as applied to a person convicted of that crime before its passage, since it did not alter the existing situation to the material disadvantage of the criminal. This paragraph was intended to include the particular classes of officers who are entitled to pay as mounted officers under the classification in the first part thereof, and gives the benefit of the higher rate of compensation to other officers, not expressly named therein, whose duties require them to be mounted. It may be true, as argued at the bar, that there may be times when Argued January 12, 1905. Decided January the duties of an aid to a major general will not require him to be mounted. But, as we understand the Army Regulations, such offi [No. 123.] 23, 1905. cers may be at any time required to render 1 ERROR to the Supreme Court of the mounted service, and are therefore given the pay of that class. Obviously, the duties of an aid to a rear admiral are not such as to require him to render mounted service, and, as the Navy personnel act only undertakes to afford a measure of compensation for duties which can properly be required of a naval officer, it can have no operation to provide pay for services peculiar to the Army. As was held in Thomas v. United States, 195 U. S. 418, 25 Sup. Ct. Rep. 102, 49 L. ed. 259, it does not follow, because Congress gives special pay to Army officers, that the same right of compensation applies to naval officers also. In that case it was held that an allowance to Army officers who might be ordered to sea or a foreign port could not be given to naval officers whose regular duties require them to engage in service upon the sea, and to cruise upon foreign waters and serve in foreign ports. The present case affords still less reason for giving the pay of an Army officer to one in the Navy, where the compensation is given for a character of service which never can be required except in the Army. Upon this branch of the case we think the court of claims was in error, and the judgment for mounted pay should not have been rendered in favor of the claimant. The judgment of the Court of Claims is modified, disallowing the sums claimed in the petition and carried into the judgment on account of mounted pay and longevity pay based thereon, and, as modified, is affirmed. State of North Dakota to review a judgment which affirmed a conviction of murder in the first degree in the District Court of Cass County in that State. Affirmed. See same case below, 12 N. D. 144, 95 N. W. 513. The facts are stated in the opinion. Messrs. B. F. Spalding and Seth Newman for plaintiff in error. Messrs. Emerson Hall Smith and W. H. Barnett for defendant in error. Mr. Justice Harlan delivered the opinion of the court: final judgment of the supreme court of the This writ of error brings in question a state of North Dakota, affirming the judg ment of an inferior court of that state, by which, pursuant to the verdict of a jury, the plaintiff in error, John Rooney, was sentenced to death for the crime of murder in the first degree. The sole question upon which the plaintiff in error seeks the judgment of this court, and the only one that will be noticed, is whether the statute under which he was sentenced was ex post facto, and therefore unconstitutional in its application to his case. His counsel agrees that the judgment must stand if the statute be constitutional. Before, as well as after, the passage of the statute under which the sentence was pronounced, the punishment prescribed by the state for murder in the first degree was death or imprisonment in the penitentiary for life. N. D. Rev. Codes, 1889, § 7068. By the statutes in force at the time of the commission of the offense, August 26th, " 14. That § 8305 of the Revised Codes of 1899, relating to judgment of death, warrant to execute, be amended so as to read as follows: § 8305. When the judgment of death is rendered the judge must sign and deliver to the sheriff of the county a warrant duly attested by the clerk under the seal of the court, stating the conviction and judgment, and appointing a day upon which the judgment is to be executed, which must not be less than six months after the day in which the judgment is entered, and not longer than nine months thereafter." 1902, as well as when the verdict of guilty | convey the prisoner to the North Dakota was rendered, it was provided that when a penitentiary, where the said prisoner shall judgment of death is rendered the judge be received by the warden, superintendent, must deliver to the sheriff of the county or keeper thereof, and securely kept in close a warrant stating the conviction and judg- confinement until the day designated for ment, and appointing a day on which the the execution. judgment is to be executed, "which must not be less than three months after the day in which judgment is entered, and not longer than six months thereafter" (§ 8305); that when there was no jail within the county, or whenever the officer having in charge any person under judgment of death deemed the jail of the county where the conviction was had insecure, unfit, or unsafe for any cause, he could confine the convicted person in the jail of any other convenient county of the state (§ 8320); that the judgment of death should be executed within the walls or yard of the jail of the county in which the conviction was had, or within some convenient inclosure within such county (§ 8321); and that judgment of death must be executed by the sheriff of the county where the conviction was had, or by his deputy, one of whom, at least, must be present at the execution. N. D. Rev. Codes, 1899, pp. 1622, 1623. "§ 16. All acts and parts of acts in conflict with the provisions of this act are hereby repealed." N. D. Laws, 1903, chap. 99, p. 119. By the sentence it was ordered that the accused be conveyed to the state penitentiary, "there to be kept in close confinement until October the 9th, 1903," and, within an inclosure in that building to be erected for the purpose, be hung by the warden of the penitentiary, or, in case of his inability to act or his absence therefrom, by the deputy warden, before the hour of sunrise on the The sentence of death was pronounced March 31st, 1903. Prior to that date, namely, on March 9th, 1903, the legislature without changing the law prescribing death or imprisonment for life as the punishment for the crime of murder in the first degree-day fixed for the execution. passed an act providing that all executions It appears from the statement of the case should take place at the penitentiary, and amending certain sections of the Revised Codes of 1899. By that act it was provided: "§ 1. The mode of inflicting the punishment of death shall be by hanging by the neck until the person is dead; and the warden of the North Dakota penitentiary, or, in case of his death, inability, or absence, the deputy warden, shall be the executioner; and when any person shall be sentenced, by any court of the state having competent jurisdiction, to be hanged by the neck until dead, such punishment shall only be inflicted within the walls of the North Dakota penitentiary at Bismarck, North Dakota, within an inclosure to be prepared for that purpose under the direction of the warden of the penitentiary and the board of trustees thereof, which inclosure shall be higher than the gallows, and so constructed as to exclude public view." "§ 3. When a person is sentenced to death, all writs for the execution of the death penalty shall be directed to the sheriff by the court issuing the same, and the sheriff of the county wherein the prisoner has been convicted and sentenced shall, within the next ten days thereafter, in as private and secure a manner as possible to be done, that the statutes in force when the sentence of death was pronounced differed from those in force when the crime was committed and when the verdict was rendered, in these particulars: 1. By the later law, close confinement in the penitentiary for not less than six months and not more than nine months, after judgment and before execution, was substituted for confinement in the county jail for not less than three months nor more than six months after judgment and before execution. 2. By the later law, hanging within an inclosure at the penitentiary, by the warden or his deputy, was substituted for hanging by the sheriff within the yard of the jail of the county in which the conviction occurred. We are of opinion that in the particulars just mentioned the statute of 1903 is not repugnant to the constitutional provision declaring that no state shall pass an ex post facto law. It did not create a new offense, nor aggravate or increase the enormity of the crime for the commission of which the accused was convicted, nor require the infliction upon the accused of any greater or more severe punishment than was prescribed by law at the time of the commission of the offense. The changes, looked at in the light as will safely secure the production of the body of the prisoner on the day appointed for his execution. The objection that the later law required the execution of the sentence of death to take place within the limits of the penitentiary rather than in the county jail, as provided in the previous statute, is without merit. However material the place of confinement may be in case of some crimes not involving life, the place of execution, when the punishment is death, within the limits of the state, is of no practical consequence to the criminal. On such a matter he is not entitled to be heard. The views we have expressed are in accord with those announced by the supreme court of North Dakota. State v. Rooney, 12 N. D. 144, 152, 95 N. W. 513. of reason and common sense and applied to the present case, are to be taken as favorable, rather than as unfavorable, to him. It may be sometimes difficult to say whether particular changes in the law are or are not in mitigation of the punishment for crimes previously committed. But it must be taken that there is such mitigation when, by the later law, there is an enlargement of the period of confinement prior to the actual execution of the criminal by hanging. The giving, by the later statute, of three months' additional time to live, after the rendition of judgment, was clearly to his advantage, for the court must assume that every rational person desires to live as long as he may. If the shortening of the time of confinement, whether in the county jail or in the penitentiary, before execution, would have increased, as undoubtedly it would have increased, the punishment to the disadvantage of a criminal sentenced to be hung, the enlargement of such time must be deemed a change for his benefit. So that a statute which mitigates the rigor of the law in force at the time a crime was committed cannot be regarded as ex post facto with reference to that crime. Calder v. Ball, 3 Dall. 386, 391, 1 L. ed. 648, 650, Chase, J.; Story, Const. § 1345; Cooley, Const. Lim. *267; Com. v. Gardner, 11 Gray, 443; 1 Bishop, Crim. Law. § 280. Besides, UINTA TUNNEL MINING & TRANSthe extension of the time to live, given by the later law, increased the opportunity of the accused to obtain a pardon or commutation from the governor of the state before his execution. Nor was the punishment, in any substantial sense, increased or made more severe by substituting close confinement in the penitentiary prior to execution for confinement in the county jail. We are of opinion that the law of 1903 did not alter the situation to the material disadvantage of the criminal, and, therefore, was not ex post facto when applied to his case in the particulars mentioned. Judgment affirmed. (196 U. S. 337) CREEDE & CRIPPLE CREEK MINING & MILLING COMPANY, Petitioner, v. PORTATION COMPANY. Mining claims-lode location-time of discovery-conclusiveness of patent-tunnel site-adverse suit. 1. The discovery of the vein or lode before any other steps are taken to perfect the location is not required by the provision of U. S. Rev. Stat. 2320, U. S. Comp. Stat. 1901, p. 1424, that "no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located," which means nothing more than that no location shall be considered complete until there has been a discovery. It is contended that "close confinement" means "solitary confinement;" and Re Medley, 134 U. S. 160, 33 L. ed. 835, 10 Sup. Ct. Rep. 384, is cited in support of the contention that the new law increased the punishment to the disad-2. vantage of the accused. We do not think that the two phrases import the same kind of punishment. Although solitary confinement may involve close confinement, a criminal could be kept in close confinement without being subjected to solitary confinement. It cannot be supposed that any criminal would be subjected to solitary confinement when the mandate of the law was simply to keep him in close confinement. Again, it is said that the law in force when the crime was committed only required confinement, whereas the later statute required close confinement. But this difference of phraseology is not material. "Con- 3. finement" and "close confinement" equally mean such custody, and only such custody, An entry of a lode mining claim, sustained by a patent, though conclusive evidence that, at the time of entry, there had been a valid location, does not preclude the owner of a tunnel site located across the lode, who claims that his location was prior to any discovery in the lode claimed, from showing the order of the steps taken to perfect the lode location, including the date of discovery, notwithstanding the provision of U. S. Rev. Stat. § 2320, U. S. Comp. Stat. 1901, p. 1424, that "no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located," which means nothing more than that no location shall be considered complete until there has been a discovery. The owner of a tunnel site who simply seeks to protect his tunnel, and has as yet discov. ered no lode claim, is not required, by U. S. Rev. Stat. §§ 2325, 2326, U. S. Comp. Stat. 1901, pp. 1429, 1430, to adverse an applica- | December 21, 1893; that said claims were tion for the patent of the lode claim through which the tunnel runs, the lode of which was discovered on the surface. [No. 18.] Argued April 15, 18, 1904. Ordered for reargument October 31, 1904. Reargued January 10, 11, 1905. Decided January 30, 1905. N WRIT OF CERTIORARI to the United ΟΝ States Circuit Court of Appeals for the Eighth Circuit to review a judgment which reversed a judgment of the Circuit Court for the District of Colorado, in favor of plaintiff, in an action for the possession of certain mining property, and damages, which was originally brought in the District Court of the County of El Paso, in that State. Affirmed. See same case below, 57 C. C. A. 200, 119 Fed. 164. The facts are stated in the opinion. Messrs. Charles S. Thomas, A. T. Gunnell, William H. Bryant, H. H. Lee, T. M. Patterson, E. F. Richardson, and H. N. Hawkins for petitioner. Messrs. Charles J. Hughes, Jr., Scott Ashton, and Gerald Hughes for respondent. Mr. J. C. Helm as amicus curia, by spe cial leave. duly located and discovered on the 2d of January, 1892, and that the patent related back. and took effect of that date for all purposes given and provided by the laws of the United States and the state of Colorado concerning mining claims. Entry upon the claims and ouster of plaintiff by defendant by means of its tunnel were also alleged. Thereafter the defendant filed its answer. Upon motion of plaintiff certain portions thereof were stricken out, and on the trial testimony offered by the defendant in support of the portions stricken out was rejected. The matter to be determined is the suffi ciency of the defenses pleaded and stricken out. To appreciate them fully it is well to state some facts about which there is no dispute, and it is sufficient to state the facts in reference to one of the lode mining claims, as the proceedings in respect to the two were alike. On February 1, 1892, J. B. Winchell and E. W. McNeal filed in the office of the county clerk of El Paso county (the county in which the mining claim was situated) a certificate of location which, not verified by affidavit or other testimony, stated that they had, on January 2, 1892, located and claimed, in compliance with the mining acts of Congress, 1,500 linear feet on the Ocean Wave lode, and gave the boundaries of the claim. By several mesne con Mr. Justice Brewer delivered the opinion veyances the title of Winchell and McNeal of the court: Certiorari to review a judgment of the United States circuit court of appeals for the eighth circuit (57 C. C. A. 200, 119 Fed. 164), reversing a judgment of the circuit court of the United States, rendered upon a verdict of a jury, directed by the court. passed to the plaintiff. On August 5, 1893, the plaintiff made an entry of the claim in the proper land office of the United States, and, no proceedings in adverse being instituted, a patent therefor was issued to it on December 21, 1893. There is no reference in the patent to the discovery or the filing of the location certificate. The first appearance of the claim on the records of any office of the United States is the entry in the local land office of August 5, 1893, and the only prior record in any state office is the location certificate, unsworn to, filed Feb The action was originally brought by the Creede & Cripple Creek Mining & Milling Company, as plaintiff, against the Uinta Tunnel Mining & Transportation Company, as defendant, in the district court of the county of El Paso, Colorado, for the possession of certain mining claims, and for dam-ruary 1, in which the parties filing the cerages. Equitable relief was also prayed. On motion of the defendant the action was removed to the United States circuit court for the district of Colorado, where, also on its ⚫motion, the pleadings were reformed, and the action made one for the possession of the property, and damages. The plaintiff filed an amended complaint, alleging in substance that it was the owner in fee and in possession, and entitled to the possession, of the Ocean Wave and Little Mary lode mining claims, being survey lot No. 8192, evidenced by mineral certificate No. 338, the patent of the United States to said plaintiff for said claims bearing date tificate stated that they had discovered the lode on January 2, 1892. On February 25, 1892, a location certificate of the defendant's tunnel was filed in the office of the county clerk of El Paso county, which, verified by the oath of one of the locators, stated that on January 13, 1892, they had located the tunnel site by posting in a conspicuous place and at the entrance to the tunnel a notice of their intent to claim and work the tunnel; that they had performed work therein to the value of $270 in driving said tunnel, and $80 in furnishing and putting in timbers, and that it was their bona fide intent to prosecute the work with diligence and dis |